Wednesday, July 09, 2014

Arlene Kushner on The Progress in Israel's Operation Protective Edge

There is a widespread – but very erroneous – impression that if an enemy attacks, a proportional response means a nation can only return what was received and no more. That is, the mistaken impression is that if Hamas shot one rocket, we could only shoot one rocket back.

International law, however, defines proportionality very differently: it is a question of legitimate military goals and intentionality. Put very simply, we would not be restricted to only shooting one rocket back at Hamas, but rather doing what is necessary (within certain defined limits) to ensure that Hamas does not shoot any more rockets. That is a legitimate military goal.

Luis Moreno-Ocampo, who was the Chief Prosecutor at the International Criminal Court in 2003, wrote this about proportionality:

“Under international humanitarian law and the Rome Statute, the death of civilians during an armed conflict, no matter how grave and regrettable, does not in itself constitute a war crime. International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives, even when it is known that some civilian deaths or injuries will occur. A crime occurs if there is an intentional attack directed against civilians...or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality).”

The proportionality has to do with the relationship between the damage inflicted and the legitimate military goal. What must be assessed, wrote the Chief Prosecutor, is:

(a) the anticipated civilian damage or injury;
(b) the anticipated military advantage;
(c) and whether (a) was "clearly excessive" in relation to (b).

Another way of phrasing it: former president of the International Court, Rosalyn Higgins, explained that proportionality "cannot be in relation to any specific prior injury - it has to be in relation to the overall legitimate objective of ending the aggression."

The sort of bombing we are doing is entirely legitimate and proportional to our military goals of making it impossible for Hamas to launch rockets at our people. If in the process some civilians in Gaza are hit, our military action remains entirely legitimate. Do not believe otherwise. In point of fact there are bound to be civilian deaths because Hamas uses civilians as human shields and places its arsenal of weapons in civilian areas.

Were Israel to decide to carpet bomb Gaza to make Hamas stop launching rockets, that would be clearly disproportionate civilian destruction in relation to the goal of stopping Hamas. But that, of course, is something we would never, ever do. We are, in fact, extraordinarily careful to avoid civilian deaths whenever it is possible to do so. We actually place phone calls to homes, warning families to get out, before we bomb the houses.

What is not legitimate according to international law is the sort of deliberate targeting of Israeli civilians that Hamas is doing day in and day out. Here the intentionality is to hit civilians.

And yet, as we see day in and day out, the international community draws an outrageous moral equivalency between Israel’s actions and those of Hamas.

When the State Department calls on both sides to “act responsibly,” you know what a joke this is.

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But it’s actually much worse than this, as Israel is – incredibly – turned into the aggressor. As Human Rights Watch reported:

“UN Secretary-General Ban Ki-moon refuses to name the perpetrators of the attacks ‘from Gaza.’ No mention is made of ‘Hamas.’ And while the rockets should ‘stop,’ what is really bothering the UNSG is alleged Palestinian victims. ‘The Secretary-General is extremely concerned at the dangerous escalation of violence, which has already resulted in multiple Palestinian deaths and injuries as a result of Israeli operations against Gaza.’

”...As for the notoriously anti-Israel UN High Commissioner for Human Rights Navi Pillay, she had this to say: ‘From a human rights point of view, I utterly condemn these rocket attacks and more especially I condemn Israel's excessive acts of retaliation.’" (Emphasis added)

I share here a video that effectively (and amusingly!) presents the situation we confront (with thanks to Raima S.)

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Part of what the international community does is attempt to pin the blame for Hamas’s violence on Israel, because Israel has not attended to the “legitimate rights” of the “Palestinian people.” (As if deliberate targeting of civilians by Hamas would be acceptable even if this were the case, which it is not.)

We see this with Ban Ki-Moon, who said, "the unsustainable situation in Gaza will also need to be addressed in its political, security, humanitarian and development dimensions as part of a comprehensive solution."
Philip Gordon, a special assistant to US President Barack Obama and the White House coordinator for the Middle East, at a conference sponsored by (surprise!) Haaretz, made it clear that the Obama administration still expects a negotiated settlement between Israel and the PA, based on the ‘67 armistice line. Now he says this? Inconceivable that he ignores the current violence from Hamas, and the fact that it is part of a unity government. But there it is.

“Jerusalem,” he declared, “should not take for granted the opportunity to negotiate” a treaty with Palestinian Authority Mahmoud Abbas, who has proven to be a reliable partner.

“At least two Fatah armed groups announced that they had started firing rockets at the ‘settlements’ of Ashkelon and Sderot, cities inside the pre-1967 borders of Israel, with another Fatah group claiming responsibility for firing 35 rockets into Israel since Sunday.”

The Elder of Ziyon put up a posting about “What Reporters Need to Know” during the current Gaza operation. But I think the points are so good that everyone needs to know them.

His major points:

1) It is a mistake to assume that all casualties are the result of Israeli airstrikes.

Traditionally, the number of Gaza rockets that fall short and never reach Israel, or that explode as they are fired is over 35% and sometimes as high as 80%!”
Then there are “work accidents” and civilians killed when guns are shot off during funerals.

2) It is a mistake to assume that casualties and damage are the direct result of Israeli airstrikes.

Many airstrikes hit weapons caches and explosives that cause a larger explosion than the strike itself.

3) It is a mistake to believe that casualties are civilian when they are not.

Terrorists, who are combatants, most frequently wear civilian clothing. And Hamas is eager to inflate the “civilian numbers.”

They are still launching rockets at us – including at the center of the country and even farther north. Rockets have landed just south of Haifa, in Hadera, Zikhron Ya’akov (where someone was mildly hurt), Casaerea and Hof Bonim.

In some of the attacks that are farther away, Iranian long-rang missiles such as the Fajr5 and M302 are being used.

Needless to say, the south – particularly Sderot and Sha’ar Hanegev - is being hit hard.

More than 225 rockets have been fired at Israel since the beginning of the operation.

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But we are hitting hard inside of Gaza, as well.

According to Minister of Defense Moshe Ya’alon, who spoke today to Army Radio:

”We'll continue with strikes that will exact a very heavy price from Hamas. We are destroying arms, terror infrastructures, command systems, Hamas institutions, regime buildings, terrorists' houses, and killing terrorists of various ranks of command.

"We will continue to hit Hamas and other terror groups in Gaza Strip from the air, sea and ground to ensure the safety of Israel's citizens."

Saying “from the ground” obviously implies a ground operation. There are multiple hints about the fact that this is about to occur, but we’re still not there. The reserve troops still have to take their places in Judea and Samaria, to replace the regular troops who must be moved to the border with Gaza.

The IDF spokesman said today that the next stage is being prepared and that this will be a long operation.
And then there is this astonishing statement from Intelligence Minister Yuval Steinitz:

“Despite the fact that it will be hard, complicated and costly, we will have to take over Gaza temporarily, for a few weeks, to cut off the strengthening of this terror army. If you ask my humble opinion, a significant operation like this is approaching.” (Emphasis added)

And so this sounds very serious indeed.

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But there remains unease here in Israel that the operation will be terminated before it should be, that the ground operation will never be actualized, and that talk such as Steinitz’s is simply a form of verbal saber rattling – a threat. After all, this was just his “humble opinion.”

For we have Netanyahu’s words today, after the Security Cabinet met. He is still saying, “the operation will expand and continue until the fire toward our towns stops and quiet returns." But the idea is that we are supposed to remove their capacity to hit us again! Not just make them stop now.

And there is the fact that, while we announce we have destroyed the homes of key Hamas leaders, we deliver a warning first so that families are not hit, and many of the leaders themselves are still walking this earth.

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Several reports are encouraging with regard to the concerns I’ve expressed here.

Khaled abu Toameh tells us that for all the bravado of leaders of Hamas, they are stunned by the power of Israel’s attack and reeling.

Apparently Egypt is unlikely to mediate a ceasefire as it has in the past. This situation “comes at a time of mounting tensions between the new government in Cairo and Hamas. [Hamas backed the Muslim Brotherhood in its battle with Egyptian president Sisi.]

“‘There is no mediation, in the common sense of the word,’ said Egyptian foreign ministry spokesman Badr Abdelatty.”

And then we have this:

“A senior Hamas official pledged that militants would not ‘surrender’ in the face of the latest air strikes on Wednesday.

“There are no ceasefire talks, in the conventional sense. There are ongoing contacts. The Israelis are not interested in mediation, they are looking for surrender,’ said Osama Hamdan, who is based in Beirut.” (Emphasis added.)